State v. Colon

• Citation: 230 Conn. 24,644 A.2d 877
• Decision Date: 05 July 1994
• Docket Number: No. 14847,14847
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. Gilberto COLON. STATE of Connecticut v. Carmen PEREZ.

Page 877

644 A.2d 877

230 Conn. 24

STATE of Connecticut v. Gilberto COLON.

STATE of Connecticut v. Carmen PEREZ.

No. 14847.

Supreme Court of Connecticut.

Argued March 30, 1994.

Decided July 5, 1994.

John A. East III, Deputy Asst. State's Atty., with whom, on the brief, were James E. Thomas, State's Atty., Paul E. Murray, Sr. Asst. State's Atty., and Joan K. Alexander, Asst. State's Atty., for appellant (State).

Kent Drager, Asst. Public Defender, for appellees (defendants).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and KATZ, JJ.

CALLAHAN, Associate Justice.

The dispositive issue in these consolidated appeals is whether a search warrant is facially invalid because the issuing judge failed to sign and date a jurat. ¹ The defendants, Gilberto Colon and Carmen Perez, were charged with various narcotics offenses. The trial court suppressed evidence seized pursuant to a search warrant that was issued upon the application of two Hartford detectives. The issuing judge, however, had neglected to sign the jurat following the statement, executed by the detectives, that established probable cause. As a result of the suppression, the trial court dismissed the charges against the defendants. The Appellate Court affirmed the judgment of the trial court. We reverse the judgment of the Appellate Court.

On February 6, 1992, Hartford Detectives Michael Perodeau and Stephen Grabowski submitted an application for a search and seizure warrant for 12 Willard Street, apartment 304, to Superior Court Judge Carmen E. Espinosa. State v. Colon, 32 Conn.App. 402, 404, 628 A.2d 1347 (1993). Judge Espinosa found that a statement of the detectives contained in the section of the application denominated "affidavit" established probable cause and issued the warrant. The subsequent search of 12 Willard Street, pursuant to the warrant, resulted in the seizure of a substantial quantity of narcotics and $9329 in cash. Id., 32 Conn.App. at 405, 628 A.2d 1347. The defendants were arrested and charged with violations of the narcotics laws. Id.

It was discovered subsequently that Judge Espinosa had neglected to sign the jurat following the detectives' statement in the application for the warrant. Id., at 404, 628 A.2d 1347. Both Perodeau and Grabowski, however, had signed and dated the jurat form in the proper places and in all other respects the application for the warrant had been properly completed and executed. Specifically, the affidavit supporting the request to delay delivery of the warrant, including its jurat, had been properly signed by Judge Espinosa and detectives Perodeau and Grabowski. Judge Espinosa had also properly signed the actual order directing the search. Id., at 404-405, 628 A.2d 1347.

After a hearing, the trial court granted Colon's motion to suppress the evidence seized pursuant to the warrant solely because Judge Espinosa had not signed the jurat following the detectives' signatures. Id., at 404 n. 2, 628 A.2d 1347. After granting the state's subsequent motion to open and reconsider its decision, the trial court held a further hearing. Id. At this further hearing, the state introduced, over the objection of defense counsel, an affidavit from Judge Espinosa wherein she attested that she had found probable cause to issue the warrant; that she had properly administered the oath to the affiant officers; that the officers had sworn to the truth of their statement establishing probable cause in her presence and had signed the jurat following their statement; that she had signed the jurat requesting dispensation with the delivery requirement and had signed the actual search warrant; and that her failure to sign the jurat, following the statement of the detectives that had established probable cause, had been an oversight.

Grabowski testified at the reopened hearing that both he and Perodeau had sworn to the contents of their statement before Judge Espinosa and had affixed their signatures to the jurat form. He further stated that Judge Espinosa had signed the order directing the search in the presence of both officers. Finally, Grabowski testified that neither he nor Perodeau had been aware of the absence of Judge Espinosa's signature on the jurat prior to searching the premises described in the warrant.

The trial court adhered to its prior decision to suppress the evidence and to dismiss the charges against Colon, holding that the unsigned jurat rendered the warrant fatally defective. Perez, the second defendant, subsequently moved to suppress the evidence seized pursuant to the warrant. His motion was granted and the charges against him were also dismissed. The Appellate Court affirmed the trial court's judgments. State v. Colon, supra, 32 Conn.App. at 402, 628 A.2d 1347.

We granted certification limited to the following issues: "(1) Under the circumstances of this case, did the failure of the issuing judge to sign the jurat on the affidavit invalidate the search warrant? (2) If the answer to question (1) is 'yes,' should the remedy have been exclusion of the evidence seized pursuant to the warrant?" State v. Colon, 227 Conn. 926, 632 A.2d 705 (1993). Because we conclude that the search warrant was valid despite the unsigned jurat, we need not address the second certified question.

The state argues that Judge Espinosa's failure to sign the jurat following the detectives' statement establishing probable cause did not render the search warrant in question invalid. We agree.

The fourth amendment to the federal constitution provides in part that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation." Similarly, article 1, § 7, of the Connecticut constitution provides in pertinent part that "no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation." Neither constitutional provision specifies a particular procedure for evidencing whether probable cause has been supported by oath or affirmation; both simply require that probable cause, in fact, be so supported. See United States v. Turner, 558 F.2d 46, 50 (2d Cir.1977) (telephonic oath); State v. Nunn, 99 Or.App. 503, 506, 783 P.2d 26 (1989); Vance v. State, 759 S.W.2d 498, 500 (Tex.App.1988). A jurat provides one effective means of attesting that an affidavit was sworn to under oath, but it is not the only effective or permissible means. State v. Nunn, supra, 99 Or.App. at 505-506, 783 P.2d 26; see also Gossard v. Vawter, 215 Ind. 581, 21 N.E.2d 416, 417 (1939); American Home Life Ins. Co. v. Heide, 199 Kan. 652, 655, 433 P.2d 454 (1967); Land Clearance for Redevelopment Authority v. Zitko, 386 S.W.2d 69, 78 (Mo.1965); People v. Rodriguez, 150 App.Div.2d 622, 541 N.Y.S.2d 491, cert. denied, 74 N.Y.2d 818, 546 N.Y.S.2d 576, 545 N.E.2d 890 (1989); People v. Zimmer, 112 App.Div.2d 500, 490 N.Y.S.2d 912 (1985); State v. Flynn, 33 N.C.App. 492, 494, 235 S.E.2d 424 (1977); White v. State, 702 P.2d 1058, 1061 (Okla.Crim.1985). Therefore, the absence of the signed jurat is not a state or federal constitutional violation.

General Statutes § 54-33a(c), ² however, requires in pertinent part that "[a] warrant may issue only on affi- sworn to by the complainant or complainants before the judge and establishing the grounds for issuing the warrant...." (Emphasis added.) The Appellate Court concluded that § 54-33a(c) requires a completed jurat in order to effect an affidavit to support a warrant. In so concluding, the Appellate Court relied principally on its own prior decision in Willametz v. Susi Contracting Co., 9 Conn.App. 1, 6-7, 514 A.2d 383, cert. denied, 201 Conn. 814, 517 A.2d 631 (1986), wherein the court held that an unsworn statement purporting to be an affidavit of debt filed in a civil case that recited only that the " '[d]efendant agreed to pay [the] plaintiff the sum of $100,030.00 on September 9, 1977, in settlement of [the] judgment' " was not an affidavit. The court reasoned that the purported affidavit of debt was not an affidavit because it "not only lacked substance, but, more importantly, it lacked the formality required of an affidavit." Id., 9 Conn.App. at 6, 514 A.2d 383. The court concluded that it lacked the requisite formality because it contained neither an oath by the plaintiff nor any attestation that the statement was made under oath before a person authorized by law to administer an oath. Id., at 6-7, 514 A.2d 383. By analogy to Willametz, the Appellate Court in the present case concluded that the definition of an affidavit necessarily includes the jurat and that, without a signed jurat, the search warrant lacked an "affidavit" as required by § 54-33a(c). State v. Colon, supra, 32 Conn.App. at 406, 628 A.2d 1347.

Even if we were to adopt the rule announced in Willametz, we do not read that ruling so expansively. Willametz was governed by Practice Book § 366, which provided that "[i]n all actions of contract when damages are to be assessed after entry of a default, the plaintiff must file an account, copy, statement, or bill of particulars verified by oath, or duly present evidence in court in support of his claim." (Emphasis added.) Willametz v. Susi Contracting Co., supra, 9 Conn.App. at 6, 514 A.2d 383. The plaintiff in Willametz neither "filed" the appropriate document verified by oath (i.e., an affidavit) nor presented evidence in court in support of his claim. Because the plaintiff in Willametz had presented neither evidence in support of his claim, nor evidence that his statement had been verified by oath, the filing of a self-proving affidavit was required by § 366. In the present case, by contrast, there was evidence that Grabowski and Perodeau had sworn to the facts establishing probable cause and that Judge Espinosa had, in fact, administered an oath to Grabowski and Perodeau prior to issuing the warrant.

Furthermore, in arriving at its decision that the purported...